from the horrific-behavior-by-all-involved dept

Something strange and disturbing is going on in Minneapolis, Minnesota. Cops have been instructing paramedics to use certain drugs to subdue arrestees, which is about as advisable as allowing paramedics to instruct officers on use of force. Cops don't know what's best for arrestees in terms of medical care. The fact that paramedics have been following their instructions is the most disturbing fact of all. As the Star Tribune reports, cops telling EMS personnel what to do has put people's lives in jeopardy.

Minneapolis police officers have repeatedly requested over the past three years that Hennepin County medical responders sedate people using the powerful tranquilizer ketamine, at times over the protests of those being drugged, and in some cases when no apparent crime was committed, a city report shows.

On multiple occasions, in the presence of police, Hennepin Healthcare EMS workers injected suspects of crimes and others who already appeared to be restrained, according to the report, and the ketamine caused heart or breathing failure, requiring them to be medically revived. Several people given ketamine had to be intubated.

The paramedics are fully complicit in this horror show. They're overriding their own knowledge and medical training with catastrophic results. This atrocious behavior was exposed by a report from the Office for Police Conduct Review. The report showed ketamine injections increased from three in 2012 to 62 in 2017. It wasn't until this report was delivered to police that anyone decided to do anything about it. The Minneapolis Police Commander has now forbidden officers from instructing EMS crews to sedate a subject.

Ketamine is a dangerous drug. The police know this. They classify it as a "date rape" drug, capable of putting people into deep sedation and altering their memories. Healthcare providers know this, too, which is why they're often hesitant to use it as a sedative if the subject has preexisting breathing problems. Ketamine can kill under these circumstances. When used as a first response in the sedation of detainees, medical histories aren't available and the outcome can be death.

Allowing police to "prescribe" sedatives is a horrible idea. The report shows Minneapolis cops nuked arrestees with a powerful sedative just because. In many of the cases examined, there appeared to be no reason to escalate to a dangerous sedative.

To evaluate how the sedative was being used, the Office of Police Conduct Review investigators looked for mentions of the word in police reports, and then reviewed body camera footage from those cases.

“Multiple videos showed individuals requiring intubation after being injected with ketamine, and [police] reports indicate that multiple individuals stopped breathing and/or their hearts stopped beating after being injected with ketamine,” the report said.

The police encounters that led to EMS using ketamine ranged from cases of obstruction of justice to jaywalking, according to the report. One man was dosed with ketamine while strapped to a stretcher and wearing a spit hood.

Unbelievably, the story gets worse. Those dosed with ketamine at the suggestion of police officers suffered rude awakenings at Minneapolis hospitals. Hennepin Healthcare went ahead and enrolled detainees in its ketamine study without their consent. Supposedly consent isn't actually required by law, which makes a sort of cosmic sense when you're studying the effects of a date rape drug. "Enrollees" could opt out afterward, but that offers little comfort when you've been sedated so heavily you need a machine to breathe for you.

This study exacerbated Hennepin Healthcare's ketamine problem. Ramping up dosings at the request of cops had already increased the number of life-threatening reactions to the drug. This incentive allowed this to carried over to day-to-day work, resulting in EMS personnel using ketamine whenever possible, even without verbal shoves from under-educated cops.

Body camera footage from one case showed a woman, after being Maced by police, asking for an asthma pump, the draft report said.

Instead, a paramedic gave her an injection of ketamine.

“If she was having an asthma attack, giving ketamine actually helps patients and we’re doing a study for agitation anyway so I had to give her ketamine,” the unnamed paramedic told a police officer, according to the report.

After receiving ketamine, the woman’s breathing stopped, and medical staff resuscitated her, according to the report.

Of course, there's an explanation for all of this. It comes courtesy of Hennepin Healthcare's top official. And it sounds like something written by police officers, rather than an expert in the medical field.

Dr. William Heegaard, chief medical officer for Hennepin Healthcare, said ketamine can be a lifesaving tool when paramedics encounter people showing signs of “excited delirium,” a condition when severe agitation can lead to death.

In the past, Taser has hosted seminars and sent out pamphlets on excited delirium to police and medical examiners’ groups across the country; sued medical examiners who listed their stun guns as a cause of death; and even gave law enforcement agencies a ready-made statement for when someone dies after police shock them with a stun gun: “We regret the unfortunate loss of life. There are many cases where excited delirium caused by various mental disorders or medical conditions, that may or may not include drug use, can lead to a fatal conclusion.”

Heegaard's hospital and staff engage in highly-questionable behavior and he's trying to pin it on a condition most of the medical community doesn't recognize as an actual syndrome. This whole debacle shows just how far cops have strayed from the "serve and protect" ideal. This is all about making things as easy as possible for officers accompanying detainees to medical care facilities. They want them knocked out, even if it raises the risk of killing them.

It also shows how easy it is for abusive behavior to spread when it's originating from law enforcement officers. Paramedics know better. They know they're the first line of defense against further injury or trauma. And they're willing to throw that all away just because a cop tells them to dope up compliant detainees.

On top of everything, there's the skewed incentives of Hennepin Healthcare, which has found a way to gather subjects for studies by sedating them so heavily they can't possibly object to anything. There should be a whole lot of people in both fields filing for unemployment. But that isn't how thing work when cops are involved. New policies will be put in place and everyone who fucked citizens with unneeded ketamine injections will just go back to work with a mental note in place reminding them to be a bit more careful when abusing the public's trust.

from the open-interpretations-and-random-enforcement-are-not-constitutional-bedfellows dept

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.

The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

JUSTICE ALITO: How about a shirt that says "Parkland Strong"?

MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]

MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­

CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?

MR. ROGAN: It would be allowed.

The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.

This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?

The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.

The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.

It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.

from the @-me-for-felony-charges dept

A tough case dealing with some horrendous behavior and a pretty broad reading of Minnesota's harassment/stalking laws has resulted in a sustained conviction on felony charges against a minor. The state appeals court summarizes the events in its decision [PDF]:

In March 2016, high school students, W.K., B.L., and appellant A.J.B., discussed that M.B., a fellow student who had been diagnosed with autism and ADHD, had recently posted some tweets discussing girls at school. B.L. and A.J.B. told W.K. that they wanted to post materials on M.B.’s Twitter page to elicit a “negative response.” A.J.B. created a Twitter account with no identifying information called “Jeb Bush’s Guac Bowl.” A.J.B. then began tweeting messages tagging M.B.’s account over two to three hours, with several referring to autism. One post contained a sign saying “Autistic Children Play Here” with a caption reading “Meanwhile at [M.B.]’s Daycare.” Another post contained a checkerboard of images with M.B.’s face and a caption reading “Click the Autistic Child.” Another post encouraged M.B. to “try a new cologne called ‘Anthrax.’” One post encouraged M.B. to “consider suicide,” while another contained an image stating “Consider the following” with a picture of a person holding a Clorox Bleach bottle. A.J.B. also posted an image of Pepe the Frog, “a known hate symbol,” hanging by the neck on a rope.

Another fine example of man's inhumanity to man: high school edition. Trash rando A.J.B. ended up with two misdemeanor charges and one felony stalking charge -- the latter predicated on the victim's disabilities. There are a few concerns with the resulting ruling, not to mention the events leading up to the criminal charges.

To begin with, the victim was not even aware of the tweets until a school administrator brought them to his attention. The administrator had presumably been tipped off by other students. This led to the victim expressing suicidal thoughts and an extreme reluctance to return to school.

This dovetails into the court's weird interpretation of Twitter mechanics. This confusion over how Twitter operates may have played a part in upholding the charges and finding A.J.B.'s speech unprotected by the Constitution. Eric Goldman points out this misapprehension allows the court to bypass the student's free speech defenses, one of which compared tweeting unpleasant messages was no different than "posting flyers on walls."

The court’s technological description of @tweeting is... garbled. It recounts evidence that “the act of tagging someone means that the messages are ‘on their wall. Anyone can see it but [the poster is] just making sure that the [tagged] person sees it.'” The reference to “their wall” in this passage is confusing. I cannot appear in someone else’s Twitter timeline unless they retweet me, whereas in Facebook and LinkedIn, my posts can show up on other people’s walls (at least in some cases) just by including their name in my post. Furthermore, AJB’s barrage of @tweets would NOT appear in AJB’s main newsfeed (as opposed to the “tweets and replies” option), and and would not seen by most readers, if the @ reference was the tweet’s first character; and none of MB’s followers would have seen AJB’s tweets unless they were also followers of AJB. Plus, MB would see the @tweets only if MB hadn’t blocked AJB and only if MB looks in the notifications area (which not everyone does). There’s a lot of technological complexity about how content appears on Twitter that the court glossed over.

As Goldman notes, blocking accounts is one remedy that doesn't involve law enforcement. It's of limited utility, considering new accounts can be created in a manner of minutes, but Twitter does give users some tools to deal with harassment and other unwanted interactions.

Second, this could have been handled by the school, rather than turning it into a criminal case. The school was the entity that brought the tweets to the attention of the student and a case could be made the harassment interfered with M.B.'s ability to continue attending school. While this education interference would have engaged school policies and discipline, this would not be without its own problems. Doing so would effectively punish someone for acts committed off-campus, which would raise its own Constitutional concerns.

The law itself is no help. It's written broadly enough the court finds it easy to criminalize otherwise-protected speech.

Per this court’s interpretation, it’s criminal stalking in Minnesota to send two or more @tweets to a person knowing they would cause the person to “feel frightened, threatened, oppressed, persecuted, or intimidated.” The Minnesota criminal harassment statute is equally dubious, applying when a person sends two or more @tweets “with the intent to abuse, disturb, or cause distress.”

As Goldman notes, many of us are subjected to "criminal" behavior every day on the platform. Perhaps some of us even engage in it, as "causing distress" may mean little more than vehemently disagreeing with someone's statements, views, political/religious preferences, etc.

There are a lot of free speech implications in play. The court threads the needle, but not in a helpful way. In order to find A.J.B.'s speech unprotected, it seizes on A.J.B.'s "targeting" of the autistic student by "tagging" him in the tweets.

The law is bad and the court is reading the law as the legislators wrote it. This could also be the way the legislators intended it to be read, rationalizing that no prosecutor would move forward with questionable charges predicated on a broadly-written law with an absurdly low bar for engagement (two tweets). Legislators either don't know or don't care that prosecutorial discretion means pursuing ridiculous prosecutions and overcharging defendants. It almost never means refusing to move forward with questionable cases. If the ruling is bad, it's because the law invites bad rulings. The fact that the court doesn't understand how Twitter works only makes it worse.

from the non-testimonial-act-of-producing-evidence-against-yourself dept

When it comes to the Fifth Amendment, you're better off with a password or PIN securing your device, rather than your fingerprint. Cellphone manufacturers introduced fingerprint readers in an effort to protect users from thieves or other unauthorized access. But it does nothing at all to prevent law enforcement from using their fingerprints to unlock seized devices.

The US Supreme Court hasn't seen a case involving compelled production of fingerprints land on its desk yet and there's very little in the way of federal court decisions to provide guidance. What we have to work with is scattered state court decisions and the implicit understanding that no matter how judges rule, a refusal to turn over a fingerprint or a password is little more than a way to add years to an eventual sentence.

The Minnesota Supreme Court has issued the final word on fingerprints and the Fifth Amendment for state residents. In upholding the appeals court ruling, the Supreme Court says a fingerprint isn't testimonial, even if it results in the production of evidence used against the defendant. (h/t FourthAmendment.com)

Although the Supreme Court’s distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence is helpful to our analysis, the act here—providing the police a fingerprint to unlock a cellphone—does not fit neatly into either category. Unlike the acts of standing in a lineup or providing a blood, voice, or handwriting sample, providing a fingerprint to unlock a cellphone both exhibits the body (the fingerprint) and produces documents (the contents of the cellphone). Providing a fingerprint gives the government access to the phone’s contents that it did not already have, and the act of unlocking the cellphone communicates some degree of possession, control, and authentication of the cellphone’s contents. See Hubbell, 530 U.S. at 36. But producing a fingerprint to unlock a phone, unlike the act of producing documents, is a display of the physical characteristics of the body, not of the mind, to the police. See Schmerber, 384 U.S. at 763.

Because we conclude that producing a fingerprint is more like exhibiting the body than producing documents, we hold that providing a fingerprint to unlock a cellphone is not a testimonial communication under the Fifth Amendment.

The ruling notes the defendant did try to holdout on this, sticking to his Fifth Amendment arguments. But when the trial court gives you only unpalatable options, defendants tend to give prosecutors what they want.

The district court concluded that compelling Diamond’s fingerprint would not violate his Fifth Amendment privilege because “[c]ompelling the production of [Diamond’s] fingerprint or thumbprint would not call upon the use of [his] mind. It is more akin to providing a key to a lockbox.” Accordingly, it ordered Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.”

Diamond continued to object to providing the necessary fingerprint for unlocking the phone. Nevertheless, he finally unlocked the cellphone with his fingerprint in court after being held in civil contempt and warned of the possibility and consequences of criminal contempt.

This is an aspect never discussed by the FBI and others engaged in the war on encryption. Many, many people can be motivated to unlock devices when faced with the prospect of indefinite imprisonment on contempt charges. It's something that should work in all but the most extreme criminal cases where the potential imprisonment might be as close to indefinite as humanly possible.

[court]LAWYER: Did u kill him?ME: NoL: You know what the punishment is for committing perjury?ME [lips on the mic] Much less than murder

Using the law to set an example and shame some teenagers undermines the seriousness and intent of child pornography laws.

Minnesota statute 617.247 clearly states that its intent is to “protect minors from the physical and psychological damage caused by their being used in pornographic work depicting sexual conduct which involves minors.” Yet it is the state, not Jane that is doing the victimizing.

“I’m not a criminal for taking a selfie,” stated Jane Doe. “Sexting is common among teens at my school, and we shouldn’t face charges for doing it. I don’t want anyone else to go through what I’m going through.”

This is clearly a ridiculous reading of Minnesota's law. The law can't "protect" Jane Doe from taking sexually explicit photos of herself -- not unless this is the prosecutor's idea of "protection." If anyone else had taken the photos, Jane Doe would be the victim of child pornography production.

Minnesota statutory rape law is violated when a person has consensual sexual intercourse with an individual under age 16, although it is raised to 18 when the offender is an authority figure. If the younger party is 13-15, their partners must be no more than 2 years older, and children under 13 may only consent to those less than 36 months older.

Although it is possible this prosecutor may have decided to wield this law just as badly.

Because there is no such "Romeo and Juliet law" in Minnesota, it is possible for two individuals both under the age of 16 who willingly engage in intercourse to both be prosecuted for statutory rape, although this is rare.

As the ACLU points out in its brief [PDF], the prosecution of Doe serves no conceivable definition of "justice." It doesn't take a child predator off the street and it requires Doe to register as a sex offender even if she pleads to a lesser charge. It robs the term "production" of any meaning by stripping it of context, treating the willing production of explicit material BY a minor as equivalent to the non-consensual production of child pornography by an adult pedophile. The lack of an exploited victim means the prosecutor shouldn't have a legal basis for the prosecution.

But here we are, watching the state of Minnesota attempt to turn someone who took pictures of herself into a criminal. The National District Attorneys Association has suggested prosecutors limit pursuit of teen sexting cases and to deploy a "light touch" in those they do choose to pursue. But the prosecutor isn't interested in following the NDAA's suggestions. As Scott Greenfield points out, leaving sensitive issues like this up to prosecutors rarely works out well for the public.

The problem with relying on prosecutorial discretion to clean up bad laws, to not use the bludgeon in ways that no one really wanted, is that it’s prosecutorial discretion. The prosecutor can choose to use a “light hand,” or come down hard. We might disagree with his choice, but the choice is his, not ours. That’s what discretion means. If the prosecutor, for whatever reason, chooses to beat a teen into submission, he can. If the elements of the crime cover her conduct, then it’s a crime and she’s a criminal. That it’s stupid isn’t the point. This is law.

The law may be stupid but we can apparently always count on some prosecutors to be even stupider. There are a wealth of options available to deter Does from sexting in the future -- none of which involve criminal charges or sex offender registration. Parents, family members, schools, community groups… all of these can provide guidance for teens without having to involve law enforcement or a prosecutor's lack of discretion.

A Minnesota bank received a call in January from who they thought was Douglas, their customer, asking to wire transfer $28,500 from a line of credit to another bank. To verify the transaction, the bank relied on a faxed copy of his passport. But it wasn’t him, the passport was fake, and the transfer request was fraudulent.

The Edina Police Department figured out that while searching Google Images for the victim’s name, they found the photo used on the fake passport, and investigators couldn’t find it on Yahoo or Bing. So, they theorized the suspect must have searched Google for the victim’s name while making the fake passport.

Edina Police Detective David Lindman detailed this theory in an application for a search warrant filed in early February, asking the Court to authorize a search warrant for names, email addresses, account information, and IP addresses of anyone who searched variations of the victim’s name over a five-week period of time.

Supposedly, the warrant [PDF] limits Google's search for searches to the Edina area, but that puts Google in the position of determining who was located where when these searches were made. Not that Google is likely to fulfill this request, warrant or not. There's nothing approaching probable cause in the warrant -- just the minimum of "detective" work that failed to uncover similar images in response to search terms at Yahoo and Bing.

Incredibly, this isn't the Edina PD's first attempt to obtain search results and the identifying information associated with them. In the warrant, Detective David Lindman notes he'd already served Google with an administrative subpoena, which Google rejected because it demanded content rather than transaction records.

Detective Lindman apparently feels Google's rejection was BS.

Though Google Inc.'s rejection of this administrative subpoena is arguable, your affiant is applying for this search warrant so that the investigation of this case does not stall.

I'm guessing Google's not going to be sending anything in response to this warrant, either. This is likely to be challenged by the company. If it isn't, anything turned over to the Edina PD will be highly suspect in terms of admissible evidence. There's no probable cause contained in the warrant application -- only the theory that any information obtained might help the investigation move forward.

Will this lead to Edina officers raiding homes because someone searched for the name "Douglas [REDACTED]" during the specified time period? Quite possibly. It obviously won't take much effort to get those warrants signed, not if judges are willing to turn law enforcement wishes into reality, without asking for anything (like actual probable cause) in return.

from the giving-The-Man-the-finger-no-longer-subversive;-actually-helpful dept

As was hinted heavily three years ago, you might be better off securing your phone with a passcode than your fingerprint. While a fingerprint is definitely unique and (theoretically...) a better way to keep thieves and snoopers from breaking into your phone, it's not much help when it comes to your Fifth Amendment protections against self-incrimination.

The Minnesota Appeals Court has ruled [PDF] that unlocking a phone with a fingerprint is no more "testimonial" than a blood draw, police lineup appearance, or even matching the description of a suspected criminal. (h/t Orin Kerr)

Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer’s hard drive, when it was unknown whether any documents were even on the encrypted drive, “would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id.

By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

Of course, it's what's contained in the now-unlocked device that might be incriminating, which is why Diamond pointed to In re Grand Jury as being analogous to the forced provision of a fingerprint. The court's rebuttal of this argument, however, doesn't make a lot of sense. It says the process that unlocked the device requires no knowledge or mental capacity -- which is certainly true -- but that the end result, despite being the same (the production of evidence against themselves) is somehow different because of the part of the body used to obtain access (finger v. brain).

In recounting the obtaining of the print, the court shows that some knowledge is imparted by this effort -- information not possessed by law enforcement or prosecutors.

Diamond also argues that he “was required to identify for the police which of his fingerprints would open the phone” and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court’s order. The district court’s February 11 order compelled Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3 contempt hearing, the district court referred to Diamond providing his “thumbprint.” The prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court answered, “Take whatever samples you need.” Diamond then asked the detectives which finger they wanted, and they answered, “The one that unlocks it.”

This is something only Diamond would know, and by unlocking the phone, he would be demonstrating some form of control of the device as well as responsibility for its contents. So, it is still a testimonial act, even if it doesn't rise to the mental level of retaining a password or combination. (And, if so, would four-digit passcodes be less "testimonial" than a nine-digit alphanumeric password, if the bright line comes down to mental effort?)

Given the reasoning of the court, it almost appears as though Diamond may have succeeded in this constitutional challenge if he had chosen to do so at the point he was ordered to produce the correct finger.

It is clear that the district court permitted the state to take samples of all of Diamond’s fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

And so, in first decision of its kind for this Appeals Court, the precedent established is that fingerprints are less protective of defendants' Fifth Amendment rights than passwords.

from the cool,-refreshing,-Trivedi-brand-'bottles-o'-bullshit' dept

Mahendra Trivedi is recognized throughout the world for the discovery of his unique ability to transmit an extremely powerful and all-encompassing form of energy. The revolutionary impact of this energy is called The Trivedi Effect® .

[You can tell it's an extra-special energy because it has a registered trademark.]

But that's not all. Not only can Trivedi energize stuff to make it do other stuff, he's also quite the human specimen.

Research done on various aspects of his physiology has confirmed unique differences in his body, such as variations in body temperature ranging between 95 and 68 degrees Fahrenheit. His breathing pattern shows minimal movement in his diaphragm (which is physically impossible). An MRI of his brain reveals that he has the largest pituitary fossa ever found in a healthy person known to date. More so, an EEG found that his brain is in an alpha state when he is simply "normal.“ According to modern medical science, Mahendra Trivedi‘s physiological conditions contradict everything we know about science, the human body and the power of consciousness.

...Mr. Trivedi began to ask why this energy is limited to humans. He felt that if this energy is real, it must work everywhere. It must enhance the abilities, properties, and productivity of crops; transform bacteria, viruses and fungi; convert cancer cells into non-cancer cells; and make metals, chemicals, and polymers stronger. Due to his skeptic nature, he started scientific research. With help from the most sophisticated technology available to science under controlled conditions; [sic] he began to discover the proven impact of this energy’s characteristics, behavior, limitations and abilities. He thought that if this energy could change the structure of an atom, then nothing was impossible for this energy. He has compiled a remarkable track record of success, including nearly 4,000 well-documented scientific studies on his ability to profoundly affect matter down to the level of the atom.

And, even under the complete lack of scrutiny provided by pay-for-play "scientific journals," the studies Trivedi claims back up his miracles have nothing approaching scientific methodology contained in them. One claiming Trivedi was able to introduce bacterial mutations simply by waving his hand over some Petri dishes is deftly summed up this way by a slightly more sympathetic blogger at "Integral World."

No attempt even to recognize, let alone engage with, these issues is made in the paper. It's basically just, this is what we found, believe it or not.

Nothing says "science" quite like the conclusion, "There's no explanation for this, so Trivedi must be a miracle worker."

This alone would make Trivedi a target of mockery and skepticism. Add to that the fact that he's faced multiple labor-related lawsuits alleging abusive behavior and you have a magnet for criticism. Unfortunately for St. Paul blogger Dennis Lang, Trivedi can't handle having his long string of dubious claims and equally-long string of abuse allegations discussed in public. Lang has been on the receiving end of two defamation lawsuits by Trivedi -- both targeting Lang's reporting on claims made by former employees of Trivedi's.

It may have come in 2013, when Lang received a call from another Trivedi-nemesis — the former partner of the organization’s current CEO. The caller informed him that a judge in Arizona had just entered a default verdict and Lang was officially $59 million in the red.

But the peak silliness may have come on June 14, 2013, when a local attorney working for Trivedi — Kelly Hadac of the St.Paul firm HDK — sought to enforce that $59 million default judgment in Minnesota.

Fortunately, the judge in Minnesota found this judgment award unbelievably ridiculous and refused to uphold it.

As she reviewed the paperwork, Ramsey County District Court Judge Margaret Marrinan expressed bafflement — both at the size of the judgment and the fact that there was no accompanying memorandum from the judge.

“It’s a fill in the blank kind of order, isn’t it?” she said. “I guess I’m rather appalled that a court would do that.” According to a transcript of the proceedings, at other points, Marrinan referred to “the incredible laxness of the judge” as “way out west” and “not the way I do business.”

If you say you’re a guru who has performed thousands of medical miracles around the world, it’s harder to say in court that you’re a regular guy.

That’s one of the takeaways from Ramsey County District Judge Robert Awsumb’s ruling last week that dismissed Mahendra Trivedi’s defamation lawsuit against a St. Paul blogger, Dennis Lang.

Awsumb’s ruling is a welcome victory for the First Amendment, especially for the vast majority of writers who have no institution to protect them from well-funded legal attacks intended to silence them. The judge ruled that Trivedi was a “limited purpose public figure,” which opens him up to public criticism with a stronger shield from lawsuits.

Trivedi tried to argue that he was not a public figure. The court found this assertion ridiculous.

Despite the extraordinary nature of the powers and abilities claimed by Trivedi and the Trivedi Entities, Trivedi states that he is "not nationally or regionally famous in the United States or elsewhere in the world."

He further states:

Even within the field of alternative medicine or energy transmissions, I am very much unknown in the United States and the rest of world. When I speak to individuals concerning the Trivedi Effect, I have to introduce myself and explain the nature of the Trivedi Effect. Unless the individual has been introduced to me by another mutual contact, the individual has never heard of me or the Trivedi Entities before. This was especially true i n 2011 and 2012 when I had only been i n the United States for a few years.

Nonetheless, in 2014 Trivedi stipulated that he was a limited purpose public figure for purposes of a related defamation lawsuit in Pennsylvania. [Trivedi v. Slawecki] In fact, the court's decision in Trivedi v. Slawecki is very similar factually to this case and involves similar issues.

Yes, the same person who boasts of "performing 70,000 medical miracles around the world" and made his "debut" alongside Deepak Chopra insists he's not a public figure… even when he's claimed otherwise to further an earlier defamation lawsuit (that he lost).

The court also points out that the nature of Trivedi's "business" invites more justifiable criticism than, say, a real scientist using real science might.

The court does not intend to consider or evaluate the accuracy or validity of Trivedi's claims or abilities. Nonetheless, the claims of being Jesus-like or Einstein-like are, by their nature, controversial claims likely to be challenged or refuted. To be sure, debate was occurring both on the internet through the PurQi.com blog and by research professor Slawecki at Penn State, who had publicly posted her summary of Penn State research questioning Trivedi's purported abilities. These claims, along with the self-proclaimed 4,000 scientific studies and publications in "170 publications in leading international, peer-reviewed scientific journals" put Trivedi and his enterprise directly into the global marketplace of ideas, obviously intended to reach a broad audience and attract interest in Trivedi and his enterprise. These vast claims of his personal powers propelled Trivedi and his entities into the public arena to affirm, debate, question and challenge his assertions, and in so doing, his character and credibility.

There's your "voluntary injection" into the public debate. Point: Lang. And lawsuit dismissed.

As James Eli Shiffner of the Star Tribune points out, this win is everyone's win, whether it's long-established journalistic outlets or hobby bloggers performing their own investigative work.

The ability to criticize public figures is a bedrock of free speech. With some public figures calling for new restrictions on that right, Awsumb’s ruling sends a message that it’s not only big media organizations that will have the court’s backing.

And if Trivedi thought suing critics would make his dubious claims and alleged abuse fade from the public eye, he's finding out (repeatedly) that his common sense is no more finely honed than his scientific skills.

from the good-news dept

Last week, we wrote about a terrible idea from Minnesota politician Joe Hoppe, for the PRINCE Act (Personal Rights in Names Can Endure Act), which was a massively broad publicity rights law, clearly designed to capitalize on Prince's recent death. In fact, as we noted, the bill could be read to violate itself, since the whole point was to block people from exploiting the likeness or name of a famous person like Prince for various purposes, including commercial purposes and fundraising. Hoppe, apparently missing the irony entirely, had no problem saying that he was pushing the bill to exploit Prince's death.

“I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said.

Thankfully, lots of people spoke out against the bill -- including many in Minnesota itself, pointing out how the law would stifle free speech for no good reason.

Apparently surprised by the unexpected backlash to his attempt to exploit Prince's death by stopping others from exploiting Prince's death, Hoppe has now announced that the bill is being set aside for the rest of this legislative session -- but may come back in the future. Hopefully, if it does, Hoppe will have taken some time to understand just how problematic broad publicity rights laws can be.

from the subtle,-guys,-subtle dept

We've written many posts on the area of so-called "publicity rights" laws. These are state laws that try to create a newish form of intellectual property around someone's "likeness" or other identifying features. A few years ago, Eriq Gardner wrote the definitive piece detailing the rise of publicity rights as a new way to try to lock down "protections" for things that don't really need to be protected. The initial intent behind many of these laws was to avoid a situation where there was a false endorsement -- basically to stop someone from putting an image or likeness of a famous person in an ad to imply support. But the law has (not surprisingly) expanded over time, and there have been many, many crazy battles over publicity rights -- including ones concerning Marilyn Monroe, Manuel Noriega, Katherine Heigl, Lindsay Lohan, Lindsay Lohan and Lindsay Lohan.

Since there's no federal law over this, it's all based on a bunch of state laws, which vary quite a bit from state to state. For example, a big part of the publicity rights case concerning Marilyn Monroe was over whether NY or California publicity rights laws applied to her estate. In California, the publicity rights continue after death. In NY, they do not. For tax reasons, after Monroe died, her estate convinced California tax authorities that Monroe was a NY resident at the time of her death. That saved them on some taxes, but it created a problem for them when they realized it meant that they couldn't use publicity rights laws in NY. So they suddenly started claiming publicity rights in California anyway, until a court rejected that plan.

That brings us to Prince. The artist who both embraced and struggled with the internet throughout his lifetime, was always focused on one thing in particular: control. While some of his actions seemed contradictory (embracing the internet at one moment and slamming it the next), when viewed through the lens of "he wanted ultimate control," the actions fit a pretty clear reasoning. But, it turns out that Minnesota, where Prince famously lived, there is no post-mortem publicity rights.

No worries, thought some Minnesota legislators, apparently, let's just rush through as quickly as possible a brand new law to create massive and widespread publicity rights for the deceased. Hell, they thought, why not call it the PRINCE Act (Personal Rights in Names Can Endure Act -- because, nothing matters any more).

Of course, like basically any law that is rushed through in response to an event, like someone's death, it appears that the people rushing it through haven't spent any time thinking about the actual impact of what they're proposing. Instead, it appears that Rep. Joe Hoppe wanted to get his name in the headlines as "helping" the Prince estate to stop the "exploitation" of Prince. Except this law is insanely broad and will be abused to stifle expression. The bill first declares:

An individual has a property right in the use of that
individual's name, voice, signature, photograph, and likeness in any medium in any manner.

That's pretty damn broad. To be fair, there are a few limitations included in the bill. It does allow for fair use, but that's limited to use that's "news, public affairs or sports broadcast." No idea why a sports broadcast is exempted here, but okay. The law also can be read to only apply to commercial use, since it applies to use "on or in products, merchandise or goods" or "for purposes of advertising or selling..." or for fund raising. And there is a limitation that just using the "name, voice, signature or photograph" "in a commercial medium does not constitute a use for purposes of advertising or soliciting solely because the material containing the use is commercially sponsored or contains paid advertising." So you could argue that you won't get hit for just posting a photo on social media or something, even if there are ads on the page.

But seeing how widely we've seen publicity rights claims abused, you could easily see this being abused. Any Prince cover artist would basically be required to get a license. Someone writing a book about Prince or that discusses Prince might violate the law -- and, at the very least, might face a lawsuit to determine if it's fair use. And, somewhat ironically, as our own Tim Cushing points out, one could read the bill itself as violating itself. After all, it's using Prince's name, and it's clearly being used to "advertise." You could also make a strong argument that it's being used for fund raising of the politicians pushing it.

“I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said.

So it's okay for Hoppe to exploit Prince's name and death... for the purpose of making sure no one else exploit's Prince's name and death? How does that work.

I know that Prince really liked to have control over everything, but it really feels a lot like this move is about figuring out how Prince's relatives will be allowed to cash in on his estate. It's not clear why politicians should be aiding such a maneuver.